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2014 DIGILAW 1202 (SC)

Lipika Gupta v. U. O. I.

2014-11-03

DIPAK MISRA, UDAY UMESH LALIT

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ORDER : By Interlocutory Application No. 27 of 2014, the following prayers have been made:- "(a) Allow the present I.A. and thereby direct the Medical Council of India to clarify its Regulation relating to migration as the same has been followed in a particular manner in all the States except in the State of Karnataka and further hold that the MCI Regulation being uniform has to be followed by the State of Karnataka and the MCI should not maintain silence under the guise that a schedule has been fixed for admission by this Hon'ble Court by virtue of order dated 19.05.2014 passed in W.P. (C) No. 737 of 2013 although it has nothing to do with migration; and (b) Pass such further or other order or orders as may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice." 2. It is submitted by Mr. Dilip Annasaheb Taur, learned counsel for the applicant, that the present application has been filed as the Medical Council of India on the basis of the schedule fixed by this Court has not expressed any opinion to the letter issued by the Directorate of Medical Education, Karnataka as a result of which the applicant has been deprived of the benefit of the migration. 3. Mr. Gaurav Sharma, learned counsel appearing for the Medical Council of India, submitted that migration has nothing to do with the fixation of the schedule and migration is permissible in law. 4. To get the things clear, we thought it apt to deal with the said issue. 5. It is not in dispute that the Regulations on Graduate Medical Education, 1997 (for short, 'Regulations') have been framed in exercise of power conferred under Section 33 of the Medical Council of India Act, 1956. Regulation 6, as amended on 20.10.2008, reads as follows:- "6. Migration. (1) Migration of students from one medical college to another medical college may be granted on any genuine ground subject to the availability of vacancy in the college where migration is sought and fulfilling the other requirements laid down in the Regulations. Migration would be restricted to 5% of the sanctioned intake of the college during the year. No migration will be permitted on any ground from one medical college to another located within the same city. Migration would be restricted to 5% of the sanctioned intake of the college during the year. No migration will be permitted on any ground from one medical college to another located within the same city. (2) Migration of students from one College to another is permissible only if both the colleges are recognised by the Central Government under section 11(2) of the Indian Medical Council Act, 1956 and further subject to the condition that it shall not result in increase in the sanctioned intake capacity for the academic year concerned in respect of the receiving medical college. (3) The applicant candidate shall be eligible to apply for migration only after qualifying in the first professional MBBS examination. Migration during clinical course of study shall not be allowed on any ground. (4) For the purpose of migration an applicant candidate shall first obtain "No Objection Certificate" from the college where he is studying for the present and the university to which that college is affiliated and also from the college to which the migration is sought and the university to it that college is affiliated. He/She shall submit his application for migration within a period of 1 month of passing (Declaration of result of the 1st Professional MBBS examination) alongwith the above cited four "No Objection Certificates" to : (a) the Director of Medical Education of the State, if migration is sought from one college to another within the same State or (b) the Medical Council of India, if the migration is sought from one college to another located outside the State. (5) A student who has joined another college on migration shall be eligible to appear in the IInd professional MBBS examination only after attaining the minimum attendance in that college in the subjects, lectures, seminars etc. required for appearing in the examination prescribed under Regulation 12(1). Note-1: The State Governments/Universities/Institutions may frame appropriate guidelines for grant of No Objection Certificate or migration, as the case may be, to the students subject to provisions of these regulations. Note -2: Any request for migration not covered under the provisions of these Regulations shall be referred to the Medical Council of India for consideration on individual merits by the Director (Medical Education) of the State or the Head of Central Government Institution concerned. The decision taken by the Council on such requests shall be final. Note -2: Any request for migration not covered under the provisions of these Regulations shall be referred to the Medical Council of India for consideration on individual merits by the Director (Medical Education) of the State or the Head of Central Government Institution concerned. The decision taken by the Council on such requests shall be final. Note -3 : The College/Institutions shall send intimation to the Medical Council of India about the number of students admitted by them on migration within one month of their joining. It shall be open to the Council to undertake verification of the compliance of the provisions of the regulations governing migration by the Colleges at any point of time." 6. Thereafter, on 22.12.2008, there was a further amendment to the Regulations. Regulation 6(1) of the Regulations as modified reads as follows:- "6(1) Migration of students from one medical college to another medical college may be granted on any genuine ground subject to the availability of vacancy in the college where migration is sought and fulfilling the other requirements laid down in the Regulations. Migration would be restricted to 5% of the sanctioned intake of the college during the year. No migration will be permitted on any ground from one medical college to another located within the same city." 7. Clause 6(4) of the Regulations, as modified, provides as follows:- "6(4) For the purpose of migration an applicant candidate shall first obtain "No Objection Certificate" from the college where he is studying for the present and the university to which that college is affiliated and also from the college to which the migration is sought and the university to it that college is affiliated. He/She shall submit his application for migration within a period of 1 month of passing (Declaration of result of the 1st Professional MBBS examination) alongwith the above cited four "No Objection Certificates" to : (a) the Director of Medical Education of the State, if migration is sought from one college to another within the same State or (b) the Medical Council of India, if the migration is sought from one college to anther located outside the State." 8. The State of Karnataka, till last year, had been following the Regulations in a different manner. As far as this year is concerned, a Government order was issued on 22.09.2014. The State of Karnataka, till last year, had been following the Regulations in a different manner. As far as this year is concerned, a Government order was issued on 22.09.2014. On 30.09.2014, the State of Karnataka issued a Government Order, as a consequence of which the process of migration got stalled. Suffice it to say at this juncture, on 09.10.2014 the Directorate of Medical Education communicated to the Secretary, Medical Council of India seeking clarification as regards Clause 6. After reproducing Clause 6, the Directorate of Medical Education stated thus:- "In the State of Karnataka, all medical colleges/institutions have reported admission of complete strength of sanctioned intake for the year 2013-14. Following admission of complete strength of students during 1st MBBS, there will not be any vacancy during 2nd year MBBS. As it was also opined that - The students who fail to qualify 1st MBBS examination should be treated as a part of the same batch, so that the strength of the whole institution will remain stable and meets clause 6(2) of regulations. However, after the successful completion of 1st MBBS examination, till this day Thirty Four (34) students have requested for migration transfer to other institutions within our state. (List enclosed) Your specific clarification is requested, If any of the students fail to qualify the Ist MBBS examination, whether these seats of failed students should be treated as vacant for the purpose of allowing migration transfer or not. The matter may kindly be treated as most urgent and it is requested to send the clarification to this Directorate at the earliest." 9. The said communication though not replied to by the Medical Council of India, its stand is very clear that there can be migration upto a particular percentage on certain conditions and the MCI Regulations are binding on the States and all the States are bound to follow a uniform pattern. 10. Presents to the grievance of the applicant. The applicant, who is studying at Basaveshwara Medical College and Hospital, Chitradurga, was admitted during 2013-2014 under the Government quota. She had applied for "No Objection Certificate" for being considered for transfer to Bangalore Medical Council & Research Institute, Bangalore. 11. 10. Presents to the grievance of the applicant. The applicant, who is studying at Basaveshwara Medical College and Hospital, Chitradurga, was admitted during 2013-2014 under the Government quota. She had applied for "No Objection Certificate" for being considered for transfer to Bangalore Medical Council & Research Institute, Bangalore. 11. Be it stated, both the institutions, namely, Basaveshwara Medical College and Hospital and Bangalore Medical Council & Research Institute, have been recognised by the Medical Council of India and are affiliated to the Rajiv Gandhi University of Health Sciences. 12. Basaveshwara Medical College and Hospital granted "No Objection Certificate" but the same was not considered by the Bangalore Medical Council & Research Institute because of the letter of clarification issued by the Directorate of Medical Education, State of Karnataka on the basis of the Government Notifications. 13. The thrust of the matter is : What precisely Regulation 6 conveys and its effect. 14. Learned counsel for the applicant has referred to the judgment of the High Court of Bombay. The High Court of Bombay in Writ Petition (Civil) No. 3086 of 2011 dated 31.08.2012 had interpreted the Regulations regarding migration as follows:- "11. The regulations which have been framed by the MCI are in exercise of the power conferred by section 33 of the Act of 1966. These regulations have been framed in pursuance of the overriding statutory power of MCI to supervise medical education and prescribe standards of education. The regulations framed by MCI have statutory force and are binding. In the regulations, as originally framed, MCI had sought to define compassionate criteria. Subsequently in the first amendment of 20 October 2008, MCI made it clear that migration should be granted only in exceptional cases to the most deserving among the applicants for good and sufficient reasons and not on routine grounds. By the subsequent amendment of 22 December, 2008, it has been provided that a migration from one medical college to another may be granted on genuine grounds subject to the availability of the vacancies. A ceiling on migrations has been imposed of 5% of the intake capacity of the receiving college. The State Government is permitted by the regulations, as amended in 2008, to frame appropriate guidelines for the grant of no objection certificates for migration but those guidelines have to be consistent with the guidelines framed by MCI." 15. A ceiling on migrations has been imposed of 5% of the intake capacity of the receiving college. The State Government is permitted by the regulations, as amended in 2008, to frame appropriate guidelines for the grant of no objection certificates for migration but those guidelines have to be consistent with the guidelines framed by MCI." 15. On a scrutiny of the letter written by the Director of Medical Education, Karnataka, it is absolutely limpid that he has misconstrued clause 6. Clause 6 of the Regulations, as we find, conveys imposition of certain conditions, namely, there should be vacancy in the college where migration is sought and migration has to be restricted to 5% of the sanctioned intake of the college during the year and no migration will be permitted on any ground from one medical college to another located within the same city. The disqualification which is found place in Clause 6 does not apply to the applicant herein. The question is whether the vacancy had occurred. 16. The Directorate of Medical Science has noted that the students who fail to qualify 1st MBBS examination should be treated as a part of the same batch, so that the strength of the whole institution remains stable and meets the requirement of clause 6(2) of regulations. 17. On a query being made, Mr. Gaurav Sharma, learned counsel for the Medical Council of India, submitted that when the students fail, they do not remain as students of the same batch and, in fact, they go to the supplementary batch. Further, the learned counsel for the Medical Council of India submitted that the 5% of the total intake capacity has to be filled up with utmost seriousness and there cannot be quarrel over the same. To elaborate, if the intake capacity is 250 and 27 students fail, as submitted by the learned counsel for the applicant, 5% would come to 13. Therefore, there are 13 vacancies available for migration. Figures will be different if the intake capacity is more. Learned counsel would submit that the actual intake capacity is 250. This is basic arithmetics. 18. This being the position, the applicant is entitled in law to apply for migration to the Bangalore Medical Council & Research Institute, Bangalore and, accordingly, we permit her and the other students to apply within a period of two weeks hence. Learned counsel would submit that the actual intake capacity is 250. This is basic arithmetics. 18. This being the position, the applicant is entitled in law to apply for migration to the Bangalore Medical Council & Research Institute, Bangalore and, accordingly, we permit her and the other students to apply within a period of two weeks hence. The applications shall be considered accordingly as per Medical Council of India Regulations as interpreted by us. It should be treated as an extension of period by this Court for the purpose of migration. This Court hopes and trusts that the respondent State shall take an attitude of sympathy and empathy and not a negative attitude or an attitude of obstinacy. No authority of the State Government even remotely think to overreach the orders of this Court and religiously follow the command. The decision shall be taken within four weeks from the date of receipt of the applications. The State of Karnataka shall file a report before this Court within four weeks hence. 19. Let the Interlocutory Applications be listed on December 1, 2014. 20. The Writ Petition pending before the High Court shall be deemed to have been disposed of as we have passed the order and fixed another date for compliance.